Date:
20140227
Docket:
IMM-3803-13
Citation:
2014 FC 191
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
February 27, 2014
PRESENT: The Honourable Mr.
Justice Roy
BETWEEN:
Najoua KHEMIRI
Applicant
and
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The applicant arrived in Canada from Tunisia on February 25,
2010. Less than two months later, she married a Canadian citizen. It was not
until February 14, 2012, that she claimed refugee protection.
[2]
This is an application for judicial review by the applicant
of the decision by the Refugee Protection Division of the Immigration and
Refugee Board (RPD), dated April 11, 2013, to reject her claim under sections 96
and 97 of the Immigration and Refugee Protection Act, RSC (2001), c 27 (Act).
For the brief reasons that follow, I am of the view that the application for
judicial review filed pursuant to section 72 of the Act must also be dismissed.
[3]
Essentially, what the applicant complains of is a certain
number of incidents that occurred in Tunisia and that apparently started in
July 2008. She was purportedly assaulted because of her dress and conduct (she was
wearing a sleeveless dress, she was smoking cigarettes, she was attacked with
an iron bar, her car was vandalized) over a period of eighteen months. The
applicant claims that five incidents involving her occurred.
[4]
The RPD found the applicant’s allegations deficient and
rejected her claim, essentially on the basis that her allegations were not
credible. The RPD found that the documentary evidence “[was] mostly statements
of fringe Salafist elements in the country.” It appears that the
Tunisian government prohibited the wearing of veils in public institutions in
2010. It is clear that the applicant’s allegations relate to conduct that would
not satisfy fundamentalists, who disapprove of certain conduct and who
encourage, among other things, the wearing of a veil. Furthermore, no details were
provided with respect to those allegations, which certainly made the RPD
suspicious. In other words, the allegations are generic and they do not make it
possible for their truthfulness to be reviewed.
[5]
The parties seem to agree that the standard of review is
reasonableness in that the matter was argued on that basis. There is nothing in
this case that makes it possible to depart from the rule in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, (Dunsmuir) that the reasonableness standard
must apply.
[6]
The applicant merely claims that erroneous findings of fact
mean that the RPD’s decision is unreasonable. I do not believe that that is the
case. In fact, the reasonableness standard allows for various interpretations
of the facts. It is only when assessments are unreasonable that judicial
intervention can take place. As frequently stated, paragraph 47 of Dunsmuir
is authoritative, and it is helpful to reproduce it here:
[47] Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[7]
Here, the applicant simply disagrees with the RPD’s
findings. Those findings seem perfectly reasonable to me under the
circumstances. I agree with the applicant that a lack of credibility need not
necessarily be fatal (Rathnavel v The Minister of Citizenship and Immigration,
2013 FC 564). But there still must be other credible evidence sufficient to
establish the elements necessary for a successful refugee protection claim. A
person who claims refugee protection more than two years after her arrival in
Canada on the basis of a visitor’s visa must be convincing. Allegations that
lack detail and that therefore cannot be reviewed objectively are open to
criticism in terms of their credibility. In fact, those allegations of mistreatment
do not align with the situation in Tunisia where, for example, wearing a veil
was prohibited.
[8]
The applicant argued at the hearing that the RPD committed
an error in law, reviewable on the standard of correctness, by not assessing
the documentary evidence provided. That documentary evidence consists
essentially in what appears to be articles from the Internet. When questioned
to that effect, counsel for the applicant was unable to shed light on their source
and, therefore, to give them weight despite the fact that they constitute
hearsay, at best.
[9]
I read the said exhibits. They all pertain to concerns with
respect to the possible rise in fundamentalism in Tunisia, with a certain focus
on what are called “salafist groups”. The articles all predate the
applicant’s testimony during which she expressed fear of those groups that she cannot
say much about.
[10]
In my opinion, the fact that that material was not analyzed
does not constitute a selective analysis of the evidence. Their weight with
respect to the issues to be determined was negligible at best. The existence of
those exhibits was not disregarded by the RPD. The RPD noted their existence at
the hearing. However, with respect, their weight is limited in relation to the
burden resting on the applicant. Moreover, during the hearing, the RPD noted
that sporadic incidents may occur, but that what is necessary is to evaluate
the person claiming refugee protection.
[11]
It is now settled law that adequacy of reasons is not a basis
for quashing a decision (Newfoundand and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paragraph
14). Similarly, reasons may not include all the arguments or details (paragraph
16). Finally, the following was decided by the Supreme Court of Canada:
[16] .
. . if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met.
[12]
In this case, in the course of the hearing, the RPD mentioned
the articles that the applicant wanted to discuss and noted that the articles identified
proceed from unrelated facts. The RPD also noted the applicant’s ultimate claim
that [translation] “the country as
a whole is governed by fundamentalists or there are quite a lot of fundamentalists”.
In its decision, the RPD directly addressed the claim that fundamentalists are
everywhere. It refused to accept the applicant’s claim along those lines and
was justified in doing so in the face of the facts in evidence. I see no
reviewable error.
[13]
Regarding the applicant’s fear of returning to her country
of origin because she now has a Christian husband, the applicant provides only
the assault by the extremists in support of that allegation. In my view, the
RPD was correct in finding that no “reasonable evidence regarding the
consequences of marrying a non-Muslim” was submitted (paragraph 20 of the
decision). Consequently, the application for judicial review is dismissed. There
is no question for certification.
JUDGMENT
The
application for judicial review of the decision dated April 11, 2013, by the
Refugee Protection Division of the Immigration and Refugee Board is dismissed. There
is no question for certification.
“Yvan Roy”
Certified
true translation
Janine Anderson,
Translator
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